When it comes to deciding disputed child custody cases
, the "best interest of the child" standard plays a central role. This standard, however is not clearly defined. It thus lends itself to a judge's own subjective ideas about what's in the best interest of the child. Though this amorphous standard can vary between judges, there are a few key factors you can expect all judges to consider. Learn about these key factors and how judges use them to determine what's in the best interest of the child.
Age of the Child
The "tender years" doctrine is an old legal principle in family law that states that younger children (ages 4 and under) should be in custody of their mothers. Since the late nineteenth century, this doctrine has slowly gone out of fashion. Several courts hold that this doctrine breeches the equal protection clause, which is part of the Fourteenth Amendment of the Constitution. However, some judges still believe the principle behind it is sound, especially when it comes to a nursing baby.
Living Situation of Each Parent
The living situation of each parent can play a big role in deciding what's in the best interest of the child. Although, this factor can sometimes be a chicken-and-egg dilemma. For example, sometimes the parent that stays in the family home is awarded custody because it could give the child a sense of stability and continuity. However, in contrast, sometimes the parent that is granted custody is also awarded the family home. So, just because you currently reside in the family home, doesn't mean you'll necessarily receive custody. Although, if your living situation reflects your desire to spend more time with your child, then you are more likely to receive custody. Don't expect getting primary custody if you are couch surfing your friends apartments while you get back up on your feet. Also consider your home's proximity to your spouse and your child's school and social activities. The closer you are to these things, the more likely a judge will grant a time-sharing custody plan.
Willingness to Support Your Spouse's Relationship to the Child
Judges can also look at how you and your spouse cooperate with each other in regards to the parenting schedule. The more cooperative you are, the more likely you are to receive custody. Courts look down on the parent that's trying to alienate the child from the other parent. If one parent has a record of bad-mouthing the other parent in front of the child, the judge may use that information to grant the other parent custody. Also, if you want to receive custody, do not interfere with visitation from the other parent.
Relationship With the Child Before the Divorce
Sometimes a parent who wasn't involved much with their child's life before the divorce suddenly develops a desire to spend more time with them after. This sudden desire is often sincere, and a judge will recognize that sincerity. This is especially true if that parent dedicated themselves to parenting during the separation period. The judge will evaluate the change in heart and determine if it's sincere or if that parent is just trying to win one over the other parent.
Typically, children aged 12 years old or older have some say towards their own custody and visitation. A judge may pull the child aside to find out their personal preferences. In some states, the court considers the child's preferences when deciding custody. However, other states disapprove of bringing the child into it at all.
The Child's Best Interest in Continuity and Stability
Most judges believe that piling more changes onto the already traumatic transition of divorce isn't good. They believe that keeping the status quo would be in the best interest of the child. So, the parent arguing for major change in custody is less likely to be granted. If you're arguing that the current custody schedule in place is working fine, then you have leg up over your spouse.
Contact a Child Custody Lawyer Today
These are just a few factors judges consider when determining custody
. To learn more about what the court will consider when determining the best interest of the child, contact the Law Offices of Rick D. Banks today. To schedule a no obligation consultation, call (559)222-4891